The Spanner case - a decade-long legal battle resulting from a police crackdown on gay male SM aficionados in the United Kingdom - reached the highest court in Europe, but the issues it raised about consent and personal liberty have yet to be fully resolved.

The case began in 1987 when police in Manchester, England, while investigating an unrelated matter, obtained a homemade videotape of gay men engaged in sadomasochistic sexual activity. Allegedly under the impression that the tape showed real torture, the Obscene Publications Squad launched a multi-year investigation - code-named Operation Spanner - that involved interviews with hundreds of men and searches of private property (one man even had his yard dug up to look for bodies).

During the course of the investigation - which cost an estimated 3 million pounds - authorities turned up more videos and photographs of men doing activities such as bondage, whipping, and temporary piercing. As described in a court brief, the acts "consisted in the main of maltreatment of the genitalia." The men avowed that all activities were fully consensual, were done in private, and did not cause any injuries requiring medical attention.

While 26 men escaped with warnings (some having been accused of aiding and abetting assaults against themselves), 16 others were charged with offenses ranging from keeping a disorderly house to "assault occasioning actual bodily harm." On the advice of their lawyers, the Spanner men pleaded guilty and were tried at the Old Bailey criminal court in London in December 1990. Presiding Judge James Rant ruled that sexual activity did not provide an exception to the legal precedent that consent was not a valid defense against assault under the 1861 Offences Against the Person Act. Eleven of the men were convicted, and three - Anthony Brown, Roland Jaggard, and Colin Laskey - were sentenced to prison terms of up to four and a half years.

Also swept up in Operation Spanner was Alan Oversby (aka Mr. Sebastian), the foremost gay male proponent of body modification in the United Kingdom, who was charged with inflicting bodily harm by administering piercings. A judge determined that while piercings done for decoration were legally permissible, those done for sexual gratification were not, and Oversby received a 15-month suspended sentence.

The Spanner verdicts outraged gay activists and members of the leather/SM community. After five of the defendants decided to appeal, the group Countdown on Spanner formed in 1992 to educate the public about the case and raise money for legal expenses. Spokesperson Val Langmuir characterized the prosecutions as "a huge waste of taxpayers' money and police time," while founder Kellan Farshea called the ruling "a gross miscarriage of justice."

In early 1992, the Spanner defendants brought their case before the High Court of Appeal, which upheld the earlier judgment, but reduced the men's prison sentences because they had not known they were breaking the law. The question of consent was "immaterial," said Lord Chief Justice Geoffrey Lane, in cases concerning the "satisfaction of a sadomasochistic libido."

The men then appealed to the House of Lords, the highest level of the British court system. In March 1993, the Law Lords (a committee of Lords with legal qualifications) ruled against the defendants in a 3-2 split decision, making a distinction between consent to SM sex and other potentially injurious activities, such as sports or surgery. "I am not prepared to invent a defense of consent for sadomasochistic encounters which breed and glorify cruelty," stated Lord Sydney Templeman. Added Lord Robert Lowry, "Sadomasochistic homosexual activity cannot be regarded as conducive to the enhancement or enjoyment of family life or conducive to the welfare of society."

Following this loss, Brown, Jaggard, and Laskey appealed to the European Commission on Human Rights - which had earlier forced the decriminalization of gay sex in Northern Ireland - claiming that the British decision violated the privacy provisions of the European Convention on Human Rights. It took four years for the case to make its way to the European Court, during which time Laskey died of a heart attack. In February 1997, the defendants lost again, with the European judges unanimously ruling that countries have a right to regulate practices that cause bodily injury.

Yet, as the Spanner case wended its way through the legal system, societal attitudes toward private sexual behavior began to change. In 1993, the Times of London editorialized that the Law Lords' recent ruling was "illiberal nonsense." Even in prison, Jaggard recalled, neither prison officers nor fellow prisoners thought they should have been tried or convicted. The British Law Commission, which advises Parliament, issued a report in 1995 recommending that SM activities that did not cause serious or permanently disabling injury should be legal. And the following year, the Court of Appeal overturned the conviction of a heterosexual man who branded his wife's buttocks with her consent.

"One of the things that gave us Spanner men the most satisfaction," Jaggard later said of the ordeal, "was that as a direct result of our determination to fight the convictions...SM'ers, both gay and straight, refused to be forced out of existence."

Liz Highleyman is a freelance writer and editor who has written widely on health, sexuality, and politics. She can be reached at PastOut@qsyndicate.com.

For further reading:

British Law Commission. 1995. Consent in the Criminal Law. Consultation Paper No. 139.